By: Leetyan Chen
We are all aware of what happened. Last year, on January 6th, 2021, former President Donald J. Trump led a crowd of over 2,000 supporters that assaulted, vandalized, and looted the United States Capitol Building. Over a year and a half later, the new January 6th Committee, an Houe of Representatives panel created to investigate the events of January 6th, is starting public hearings and beginning to pile on evidence of Trump’s role in 2021. However, even as 60% of Americans believe he should be indicted, the criminal case falters, prosecutors resign, and Trump faces almost zero legal threat.
As the evidence begins to pile up against him, Trump is starting to get worried. He recently released a rambling, twelve-paged document that sets up his legal defense. An article in the New York Times sums it up best: “On nearly every page, Mr. Trump explained why he was convinced that Democrats had stolen the 2020 election from him and why he was well within his rights to challenge the results by any means available.” Although Trump might as well have fabricated the claims as a last-ditch effort to save his reputation, it does pose an interesting question. Would he face criminal charges?
If he did, this would pose quite the challenge for the Justice Department. Even the criminal case is complex and has several key challenges. The prosecution would first have to prove that Trump knew that what he was doing was illegal and that his claims were false. Foreseeing this hurdle, Trump has already pushed in his press release a completely different narrative: claiming he was contributing to an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.” Disastrously, Michael M. Schmidt and Maggie Haberman conclude, “[Trump’s] continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.”
Although the criminal case will be complicated, Trump’s defensive argument isn’t clean. Trump has a clear record of saying whatever he wants to benefit his position, such as trying to overturn the Georgia result. During the infamous phone call to “find [him] 11,780 more votes”, Trump's statements were less like an attempt to fix perceived vulnerabilities and more like an illegal power-grab. The House Committee is also building up a case against Trump by bringing in all of his former aides and advisors to document what he did and said in the days following January 6th. The New York Times also reports another avenue the Committee is taking. “At its third hearing on Thursday, the committee built a case that Mr. Trump had plunged ahead with a scheme to have Vice President Mike Pence unilaterally overturn the 2020 election even though Mr. Trump had been told it had no legal basis.” However, successfully prosecuting these allegations is dependent on proving Trump’s intent, which Trump is already trying to preemptively frontline in his report by saying that he was acting upon “legitimate questions about the conduct of the election.”
Another massive problem with the criminal case is its lack of prosecutors and the stalling of many issues in the grand jury. Carre Dunne and Mark Pomerantz, two top-tier prosecutors in the Manhattan district attorney's criminal investigation into former President Donald Trump, have recently resigned from their posts. Trump has called the investigation into his financial records a “witch hunt.” Combined with the recent grand jury decisions, this part of the case is practically closed.
Many optimistic people watching the Committee hearings believe that prosecuting Trump with all the evidence would be an easy fit. However, Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor, cautioned that “the standard for using evidence against a defendant is higher in court, where judges almost always insist that prosecutors rely on firsthand testimony, witnesses can be cross-examined and prosecutors need to prove their arguments beyond a reasonable doubt.”
Sources:
https://s3.amazonaws.com/appforest_uf/f1655667739760x715784437624589200/Despite%20Growing%20Evidence%2C%20a%20Prosecution%20of%20Trump%20Would%20Face%20Challenges%20-%20The%20New%20York%20Times.pdf
https://thehill.com/opinion/white-house/3529814-the-challenge-of-prosecuting-trump/?adlt=strict&toWww=1&redig=0339C451F45543CE8F03214D105B3957
https://www.cnn.com/2022/03/08/opinions/trump-manhattan-district-attorney-prosecution-problems-williams/index.html?adlt=strict&toWww=1&redig=9767B13135554F8BAB50DB596758A674
https://www.npr.org/2022/01/06/1070736018/jan-6-anniversary-investigation-cases-defendants-justice
https://www.bbc.com/news/uk-politics-55571482